UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 15-cv-000XXXX
ROBERT GONZALEZ
Plaintiff
-vsAFNI, INC., PRESIDENT RONALD L.
GREEN , GREGORY J. DONOVAN
SECRETARY, TREASURER STEVE
CZIRJAK, DIRECTV and CHIEF
EXECUTIVE OFFICER MICHAEL D.
WHITE OF DIRECTV
Defendants
___________________________________/

MOTION IN OPPOSITION TO DEFENDANTS DIRECTTV, LLCS MOTION

TO DISMISS AND INCORPORATED MEMORANDUM OF LAW
COMES NOW RENE MESA (Plaintiff) and files this motion in opposition to
DEFENDANT DIRECTVS MOTION TO DISMISS PLAINTIFFS COMPLAINT AND
INCORPORATED MEMORANDUM OF LAW filed by DIRECTV, LLC (herein
Defendant) under Federal Rule of Civil Procedure 12(b)(6).

Plaintiff states as follows:

INTRODUCTION
1.

DIRECTV, under the control of MICHAEL D. WHITE, created, sold, assigned or

contracted with ANFI knowing at all times that ANFI would attempt to collect a non-existent or
time-barred debt. These acts are ongoing. Plaintiff attempts to uncover these facts resulted in
abuse and ANFI hanging up the telephone on the Plaintiff. DIRECTV definitely provided
private information, including location information to ANFI. Through information and belief,
the Plaintiff alleges that the account was sold for between five and ten cents on the dollar to

ANFI. At all times, DIRECTV, under the control of MICHAEL D. WHITE had actual
knowledge of ANFIs business and knew that ANFI would attempt to ask Plaintiff for money.
2.

The Defendants statement conflicts with the Plaintiffs allegations which are accepted as

true at this stage. See Quality Foods, 711 F.2d at 99495. Plaintiffs factual allegations ( 3753) also alleges that an exact amount was not given, to the extent that DIREECT-TV sold the
account to ANFI, then DIRECTV gave ANFI the wrong amount for collections under their
direction (Statements are material if they influence a consumer's decision--to pay a debt in
response to a dunning letter, for example, see Muha, 558 F.3d at 628--or if they would impair the
consumer's ability to challenge the debt at issue. See Berg v. Blatt, Hasenmiller, Leibsker &
Moore LLC, No. 07 C 4887, 2009 U.S. Dist. LEXIS 26808, 2009 WL 901011, at *7 (N.D. Ill.
Mar. 31, 2009). AFNI's false statements are material in both related senses; AFNI's statements
that it is "unable to investigate" a consumer's dispute due to "insufficient information" both
impair the consumer's ability to challenge the debt at issue and influence his or her decision to
pay the debt. Hale v. AFNI, Inc., No. 08 CV 3918, 2010 U.S. Dist. LEXIS 6715, *22 (Jan. 26,
2010).
3.

Misrepresenting the financial consequences of not paying a debt is material. Lox v.

CDA, Ltd., 689 F.3d 818 (7th Cir. 2012). Correct identification of the debt collector and the
owner of the debt is material.

Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323 (6th Cir.

2012)), that the least sophisticated consumer would be harassed, oppressed and deem the acts
unfair, and that and that, MICHAEL D. WHITE authorized these acts, and DIRECTV and
MICHAEL D. WHITE failed to exercise due care in selling this account to ANFI and that All
Defendants knowingly, willingly, wantonly, maliciously engaged in acts in violation of state and
federal laws and attempted to collect a debt from Plaintiff and the act of hanging up the
telephone on the Plaintiff and acting belligerent with consumers inquiring as to their collection
accounts.

While Plaintiff still has no knowledge of the alleged account shrouded in mystery

by DIRECTV and ANFI, the Plaintiff can only assume that the alleged debt is time-bared, if it
exists at all. Plaintiffs reasonable inquiry and attempts by the Plaintiff to research the debt have
resulted in the Plaintiff being insulted and hung-up on. Plaintiff will have to propound discovery
to obtain documents original documents regarding the alleged account allegedly created by
DIRECTV.
LEGAL STANDARD

4.

On a motion to dismiss, this Court accepts as true all the allegations in the *1309

complaint and construes them in the light most favorable to the plaintiff. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir.2004). Further, this Court favors the plaintiff with
all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health &
Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990) ("On a motion to dismiss, the facts stated in
[the] complaint and all reasonable inferences therefrom are taken as true.")
PERSONAL JURISDICTION ON DIRECTV AND MICHAEL D. WHITE WILL NOT
OFFEND PUBLIC POLICY
5.

Defendant brings their motion under 12(b)(2) and 12(b)(6). The exercise of personal

jurisdiction in this case will not offend traditional notions of fair play and substantial justice
When determining whether personal jurisdiction satisfies notions of fair play and substantial
justice, the Eleventh Circuit looks to three factors: (1) the burden on the defendant; (2) the
interests of the forum; and (3) the plaintiffs interest in obtaining relief. See Republic of Panama
v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 947-48 (11th Cir. 1997). The Eleventh
Circuit has noted that the burden on a litigant is only significant if it is gravely difficult and
inconvenient that he unfairly is at a severe disadvantage in comparison to his opponent. Id. at
948.
6.

Inconvenience alone is not enough to deny a court personal jurisdiction over the

defendant. Id. (noting that only in rare cases will inconvenience become constitutionally
unreasonable) (citing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 116 (1987).
7.

First, a defendant must have sufficient A minimum contacts with the forum state.

Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir. 1990) (citing Intl Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S. Ct. 154, 158 (1945)) (citations omitted). Second, the exercise of personal
jurisdiction over a defendant must not offend A traditional notions of fair play and substantial
justice. Id. (quoting Intl Shoe Co., 326 U.S. at 316, 66 S. Ct. at 158)) (citations omitted).
None of these issues are even addressed the Defendants motion to dismiss and Plaintiff has
satisfied the 11th Circuits test for personal jurisdiction. Under basic contract law, the Defendant
is liable to the extent that a contract was purposely created, sold then assigned to a debt collector.
The Defendant has exercised massive contacts with Florida as the President of DIRECTV and
satisfies the requirement with minimum contacts with the forum state. Madara v. Hall, 916
F.2d 1510, 1516 (11th Cir. 1990) (citing Intl Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.

Ct. 154, 158 (1945)) (citations omitted). MICHAEL D. WHITE and DIRECTV now seek to
escape liability; however the argument for lack of personal jurisdiction fails.

ARGUMENT

COLLECTION OF TIME-BARRED DEBT IS DECEPTIVE

8.

Defendant DIRECTV, under direction of MICHAEL D. WHITE, either sold this account

for an amount alleged that is unclear, to a party that engaged in debt collection and failed to
provide notice that the debt was time-barred. See United States v. Asset Acceptance, LLC, No.
8:12cv182T27EAJ (M.D. Fla. 2012). That decree requires the company to disclose to
consumers whether it knows or believes that a debt was incurred outside the limitations period,
using this language: The law limits how long you can be sued on a debt. Because of the age of
your debt, we will not sue you for it.
9.

These letters and the subsequent communications are not opportunities to settle. They

are opportunities and invitations for ANFI and DIRECTV to re-toll the statute of limitations
and deceptive to the least sophisticated consumers; the consumer could be induced to make a
partial payment on an alleged debt. In this way, the statute of limitations on the alleged debt
would re-toll and allow ANFI and DIRECTV to sue the Plaintiff, assuming the debt is legitimate.
Under such a scenario, unsophisticated consumers, having no knowledge of time-barred
accounts, could easily make a payment which could then be used to reduce their credit rating as
well. However when a suspicious consumer (like the Plaintiff) makes inquiry as to legitimacy of
the debt, who owns it, and when the debt was created, he is insulted and hung up on (or any
effect on Plaintiffs credit for example).
10.

The Seventh Circuit recently adopted the position urged by the Consumer Financial

Protection Bureau (CFPB, which now enforces the FDCPA and has taken the role of the
enforcement bureau for consumer law after the FTC) in McMahon v. LVNV Funding, 744 F.3d
1010 (7th Cir. 2014), which held that a letter offering to settle a debt violated section 1692e
and 1692f of the FDCPA, because the limitations period had expired. Relying in part on the
well-reasoned position put forth by the FTC and CFPB in their amicus brief (the Delgado case
was combined with McMahon on appeal), the Court held that the running of the limitations
period a central fact about the legal status of a debt, and therefore will be important for a

consumer to know if the limitations period has run. The proposition that a debt collector
violates the FDCPA when it misleads an unsophisticated consumer to believe a time-barred debt
is legally enforceable, regardless of whether litigation is threatened, is straightforward under the
statute. Section 1692e(2)(A) specifically prohibits the false representation of the character or
legal status of any debt. Whether a debt is legally enforceable is a central fact about the character
and legal status of that debt. A misrepresentation about that fact thus violates the FDCPA. This
argument was made in McMahon v. LVNV Funding, 744 F.3d 1010 (7th Cir. 2014). The court
stated:
Using the same lawyer as McMahon, Delgado filed a complaint under the FDCPA
charging that CMS violated that statute by sending a dunning letter on a timebarred debt
and including an offer of settlement which, if accepted, would in fact make the debtor
worse off. CMS filed a motion to dismiss for failure to state a claim. In considering that
motion, the district court decided that it was appropriate to give Skidmore deference to
the views of the Federal Trade Commission, the Consumer Financial Protection Bureau,
the Federal Deposit Insurance Corporation, the Federal Reserve Board, and the Office of
the Comptroller of the Currency. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). As
those agencies had argued in other cases, the court held that when collecting on a time
barred debt a debt collector must inform the consumer that (1) the collector cannot sue to
collect the debt and (2) providing a partial payment would revive the collectors ability to
sue to collect the balance. The court also found the reference in Delgados letter of a
possible settlement of the debt to be deceptive, because it implied that a legally
enforceable obligation to pay the debt existed. CMS filed a motion under 28 U.S.C.
1292(b) for immediate appeal, given the importance of the issues. This court accepted the
appeal on May 8, 2013. Delgados request for class certification is still before the district
court, which has suspended proceedings pending the outcome of this appeal.
McMahon In 1997, Scott McMahon received a bill from a utility company, Nicor Gas.
Apparently McMahon did not pay that bill. Fourteen years later, in September 2011,
defendant LVNV Funding, LLC, purchased the debt, which by then was for $584.98.
LVNV retained a collection agency, Tate & Kirlin (Tate), to pursue payment. (Although
there are several defendants, we refer to them as LVNV for ease of exposition.) Tate sent
the letter that sparked this lawsuit to McMahon on December 19, 2011. At the top of the
letter, information about the immediate creditor (LVNV), the previous creditor (Nicor
Gas), and the total due ($584.98) appeared. The text of the letter read as follows:This
account has been listed with our office for collection. This communication is from a debt
collector. This is an attempt to collect a debt and any information obtained will be used
for that purpose.
An Opportunity: We are pleased to extend to you an offer to settle your account
in full for $233.99. This represents a savings of 60% off your balance. Unless
you notify this office within 30 days after receiving this notice that you dispute
the validity of this debt or any portion thereof, this office will assume this debt is
valid. If you notify this office in writing within 30 days from receiving this notice

that you dispute the validity of this debt or any portion thereof, this office 4 Nos.
123504 & 132030 will obtain verification of the debt or obtain a copy of a
judgment and mail you a copy of such judgment or verification. If you request of
this office [sic] in writing within 30 days after receiving this notice this office will
provide you with the name and address of the original creditor, if different from
the current creditor. At the bottom of the page there was a tearoff payment
coupon, which the recipient was instructed to detach and return with his payment.
The letter said nothing about when the debt was incurred, and it contained no hint
that the four year statute of limitations applicable in Illinois had long since
expired. See 810 ILCS 5/2725.
On receiving the letter, McMahon responded to Tate with a request for verification,
stating that we can settle this quickly once the debt was verified. In January 2012, one
of LVNVs affiliates (defendant Resurgent) replied to McMahon. It gave him some
details, including the fact that LVNV now owned the debt, that LVNV had acquired
the debt from Nicor on September 23, 2011, and that the amount was $584.98.
Resurgent kept mum, however, about the advanced age of the debta detail that
would have alerted either McMahon or his lawyer to the fact that he had an iron
clad defense under the statute of limitations. The next month, McMahon filed a suit
under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, 1692f, on
behalf of himself and a class.
Delgado On February 7, 2012, defendant Capital Management Services LP (CMS) sent a
debtcollection letter to plaintiff 6 Nos. 123504 & 132030 Juanita Delgado, another
resident of Illinois. The letter stated, in relevant part: Dear Juanita Delgado, This
company has been engaged by RESURGENT CAPITAL SERVICES, LP, the servicer of
the account, to resolve your delinquent debt of $2404.13. Please submit your payment
and make your check or money order payable to Capital Management Services, LP, to the
above address.
Capital Management Services, LP is authorized to accept less than the full balance due
as settlement of the above account. The settlement amount of $721.24, which represents
30% of the amount presently owed, is due in our office no later than fortyfive (45) days
after receiving Nos. 123504 & 132030 7 this notice. We are not obligated to renew this
offer. For your convenience, this settlement may be made online at: www.cmstrans.com.
For other payment options, please contact Capital Management Services . This is an
attempt to collect a debt; any information obtained will be used for that purpose. This
communication is from a debt collector. The letter did not say that CMS was time
barred from enforcing the debt under Illinoiss statute of limitations, nor did it
disclose when the debt was incurred. In fact, Delgados letter was about an eight
yearold debt, which meant that any collection action would have been barred by
Illinoiss statute of limitations, if the debtor were savvy enough to raise the point.
The letter also instructed the recipient to detach and return [the] top portion with
payment. Using the same lawyer as McMahon, Delgado filed a complaint under the
FDCPA charging that CMS violated that statute by sending a dunning letter on a time
barred debt and including an offer of settlement which, if accepted, would in fact make
the debtor worse off. CMS filed a motion to dismiss for failure to state a claim. In

considering that motion, the district court decided that it was appropriate to give
Skidmore deference to the views of the Federal Trade Commission, the Consumer
Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Federal
Reserve Board, and the Office of the Comptroller of the Currency. See Skidmore v. Swift
& Co., 323 U.S. 134 (1944). As those agencies 8 Nos. 123504 & 132030 had argued in
other cases, the court held that when collecting on a time barred debt a debt collector
must inform the consumer that (1) the collector cannot sue to collect the debt and (2)
providing a partial payment would revive the collectors ability to sue to collect the
balance. The court also found the reference in Delgados letter of a possible settlement
of the debt to be deceptive, because it implied that a legally enforceable obligation to pay
the debt existed.
II. District Court Decisions In reaching their respective conclusions, both district courts
noted that the FTC has found that nondisclosure of the fact that a debt is timebarred
might deceive a consumer in Nos. 123504 & 132030 9 at least two ways: first, because
most consumers do not know or understand their legal rights with respect to the
collection of timebarred debt, attempts to collect on such debt may create a misleading
impression that the consumer has no defense to a lawsuit; and second, consumers often
do not know that in many states the making of a partial payment on a stale debt actually
revives the entire debt even if it was otherwise timebarred. Given the potential for
confusion, and to avoid creating a misleading impression, the FTC recommended that if a
collector knows or should know that it is collecting on a timebarred debt, it must inform
the consumer that (1) the collector cannot sue to collect the debt, and (2) providing partial
payment would revive the collectors ability to sue to collect the remaining balance. FED.
TRADE COMMN, THE STRUCTURE AND PRACTICE OF THE DEBT BUYING INDUSTRY 47
(2013) (FTC Report 2013). Both district courts were also aware that the FTC had secured
a consent decree with Asset Acceptance, LLC. See United States v. Asset Acceptance,
LLC, No. 8:12cv182T27EAJ (M.D. Fla. 2012). That decree requires the company to
disclose to consumers whether it knows or believes that a debt was incurred outside the
limitations period, using this language: The law limits how long you can be sued on a
debt. Because of the age of your debt, we will not sue you for it. In Delgado, the district
court found the FTCs position persuasive and thus denied CMSs motion to dismiss. It
held that, for debts that have aged beyond the period of limitations, a dunning letter that
contains no disclosure about when the debt was incurred, the implications of that date for
its enforceability, and the consequences of making a payment on it, may mislead and
deceive unsophisticated consumers. As for the specific letter Delgado received, which 10
Nos. 123504 & 132030 included an offer to settle, the district court found it plausible
that an unsophisticated consumer could be deceived into believing that the offer of
settlement implies a legally enforceable obligation to pay the debt.
11.

The CFPB determined in its amicus brief Delgado v. Capital Management Services, LP,

No. 13-2030, actual or threatened litigation is not a necessary predicate for an FDCPA violation
in the context of time-barred debt . . . Depending on the circumstances, a time-limited settlement
offer could plausibly mislead an unsophisticated consumer to believe a debt is enforceable in

court even if the offer is unaccompanied by any clearly implied threat of litigation. See CFPBs
Delgado Brief at p.2.
12.

In Sixth Circuit Court of Appeals, Buchanan v. Northland Group Inc., No. 13-2523, the

CFPB filed another amicus brief and reiterated Plaintiffs position that the FTCs position that
consumers do not expect that a partial payment will have the serious, adverse consequence
of starting a new statute of limitations and that collectors may violate the FDCPA if they fail
to disclose clearly and prominently to consumers prior to requesting or accepting such
payments that (1) the collector cannot sue to collect the debt and (2) providing a partial payment
would revive the collectors ability to sue to collect the balance. See CFPBs Buchanan Brief at
pages 17-18.
13.

The source of a debt and the amount a bad debt buyer paid for plaintiffs debt is at

all times relevant, as well as the statute of limitation. Coppola v. Arrow Financial Services,
3:02CV577, 2002 U.S. Dist. LEXIS 26788, 2002 WL 32173704 (D. Conn., Oct. 29, 2002)
(must phrase request clearly); Kimbro v. IC System, 3:01CV1676, 2002 WL 1816820
(D.Conn. July 22, 2002); Boutvis v. Risk Management Alternatives, Inc., 3:01 CV 1933
(DJS), 2002 U.S. Dist. LEXIS 8521 (D.Conn., May 3, 2002) (price paid is relevant to the
nature of the relationship between the alleged assignee and prior owner, i.e. had the
company actually bought the debt). A low price is also relevant to whether the purchaser is
on notice that the debt is time-barred or discharged in bankruptcy. How amount sought was
calculated. Coppola v. Arrow Financial Services, 3:02CV577, 2002 U.S. Dist. LEXIS 26788,
2002 WL32173704 (D.Conn., Oct. 29, 2002); Kimbro v. IC System, 3:01CV1676, 2002 WL
1816820 (D .Conn. July 22, 2002) Documents conferring authority on defendant to collect debt.
Coppola v. Arrow Financial Services, 3:02CV577, 2002 U.S. Dist. LEXIS 26788, 2002 WL
32173704 (D.Conn., Oct. 29, 2002); Kimbro v. IC System, 3:01CV1676, 2002 WL 1816820
(D.Conn. July 22, 2002); Yancey v. Hooten, 180 F.R.D. 203 (D.Conn. 1998).
14.

To the extent that DIRECTV, at all times under the direction of MICHAEL D. WHITE

inflated the amounts owed and sold the debt to ANFI, then DIRECTV and MICHAEL D.
WHITE are the source of the debt alleged and are liable under the Florida Consumer Collection
practices Act (FCCPA). The FCCPA states:
559.77 Civil remedies.

(5) In applying and construing this section, due consideration and great weight
shall be given to the interpretations of the Federal Trade Commission and the
federal courts relating to the federal Fair Debt Collection Practices Act.
15.

Unlike McMahon, the Defendants, DIRECTV under the control of MICHAEL D.

WHITE and ANFI gave Plaintiff no details in the alleged communication of the debt. Like the
Defendant Resurgent kept mum in Delgado about the advanced age of the debta detail that
would have alerted either McMahon or his lawyer as to the legal status of the debt, Defendants
kept silent as to the character and legal status of the debt.

FDCPA AND FCCPA HAVE A COMMON GOAL: PROTECT CONSUMERS

16.

Plaintiff relies in part upon a recent Eleventh Circuit opinion, LeBlanc v. Unifund CCR,

601 F.3d 1185 (11th Cir. 2010), which held that a violation of the FCCPA for failure to register
as an out of state consumer collection agency may support a federal cause of action under 15
U.S.C. 1692e(5) of the FDCPA against a collector for threatening to take an action it could not
legally take. The Plaintiffs proposition that the Defendants DIRECTV and MICHAEL D.
WHITEs attempt to revive the statute of limitations of a time-barred debt is an action not legally
allowed to take along with improper amounts owed. This in part stated as claim for an action
under 1692d with harassing conduct, just as the Eleventh Circuit found similar congruence
between the FDCPA and FCCPA and an act not legally allowed to be taken under the FCCPA.
Plaintiff also asserts that as in LeBlanc, Plaintiff is not seeking a per se rule that one violation
equals the other, but rather that the same conduct can separately support a violation of both the
FDCPA and FCCPA.
17.

The FCCPA provides guidance in how courts should interpret the statute stating that "[i]n

applying and construing [the FCCPA], due consideration and great weight shall be given to
interpretations of the Federal Trade Commission and the federal courts relating to the Fair Debt
Collection Practices Act." The FCCPA is a laudable legislative attempt to curb what the
legislature evidently found to be a series of abuses in the area of debtor-creditor relations. 10A
Fla. Jur.2D Consumer 138 (2010). The FCCPA also defines and protects an individual's right
to privacy with regards to consumer collections practices in the state. See generally, Laughlin v.
Household Bank, Ltd., 969 So.2d 509 (Fla. Dist.Ct.App. 1st Dist.2007).
18.

Relevant to the question presented here, the FDCPA and FCCPA have certain parallels.

For instance, Section 559.72(9) of the FCCPA prohibits a debt collector from asserting the

existence of [a] legal right when such person knows that the right does not exist. See Fla. Stat.
559.72(9); compare 15 U.S.C. 1692e(5).

The FCCPA unequivocally states its goal-to

provide the consumer with the most protection possible under either the state or federal statute.
See Fla. Stat. 559.552 (In the event of any inconsistency the provision which is more
protective of the consumer or debtor shall prevail.) Further, the fact that the FCCPA deemed its
remedies cumulative reveals that the Florida legislature contemplated dual enforcement of state
and federal law regarding the opinions of the FTC.
19.

However, the FCCPA was drafted to provide stronger consumer protection than the

FDCPA, explicitly providing that "[i]n the event of any inconsistency between any provision of
this part and any provision of the federal act, the provision which is more protective of the
consumer or debtor shall prevail." Relying on this "more protective" language in 559.552, two
Florida courts have interpreted terms in the FCCPA to afford the consumer greater protection
than that in the FDCPA Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125 (M.D.
Fla. 2009) and Kahmeyer v. Federal Credit Corporation, (by the 13th Judicial Circuit in
Hillsborough County, Florida).

The Court should therefore apply the same decisions and

analysis to both the FDCPA and FCCPA claims.

20.

Plaintiff alleges that the Defendant engaged in a violation under either section 559.72(7),

Florida Statutes, which prohibits a debt collector from willfully engag[ing] in . . . conduct
which can reasonably be expected to abuse or harass the debtor, or section 559.72(9), Florida
Statutes, which creates a violation if a debt collector assert[s] the existence of some . . . legal
right when such person knows that the right does not exist. Defendant cites several federal
district court cases in Florida in support of its position.
21.

Plaintiffs complaint as mentioned above with the impermissible shifting of statutory

burdens in which Plaintiff was required to decide whether the rights set forth by DIRECTV,
under the control of MICHAEL D. WHITE, and ANFI constitutes an assertion of the existence
of a legal right that Defendant knew did not exist, thereby violating section 559.72(9). As
Plaintiff urges, with respect to determining what constitutes a misrepresentation of a legal right
under section 559.72(9), the court must refer to other statutes that establish the legitimacy of a
debt and define legal rights. See Cliff v. Payco Gen. American Credits, Inc., 363 F.3d 1113,
1126 (11th Cir. 2004) (citing Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1363 (S.D. Fla.

2000)). Consequently at this early stage, the Plaintiff has sufficiently alleged violations of
sections 559.72(9), the Court should deny the motion to dismiss.

THE FEDERAL TRADE COMMISION, THE FDCPA AND THE FCCPA

22.

A claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair

practice; (2) causation; and (3) actual damages. Virgilio v. Ryland Group, Inc., 680 F.3d 1329,
1338 n.25 (11th Cir. 2012) (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct.
App. 2006)). Here, Plaintiff alleges that Defendants, including DIRECTV under the control of
MICHAEL D. WHITE, violated FDUTPA by engaging and unfair and deceptive acts. See
factual allegations 1-53. The complaint identifies DIRECTV under the control of MICHAEL
D. WHITE, is liable for the alleged deceptive acts that caused the violation of FDUTPA.
Plaintiffs allegations are sufficient to withstand a Rule 12(b)(6) dismissal. Plaintiff must be
afforded the opportunity to prove the allegations through the discovery process.
23.

Florida courts have adopted the definition of unfair used under the federal scheme,

which provides that an unfair practice is one that offends established public policy and one
that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.
Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001) (citing
Spiegel, Inc. v. Fed. Trade Comm'n, 540 F.2d 287, 293 (7th Cir.1976)). Plaintiff alleges that the
acts of DIRECTV under MICHAEL D. WHITES control, offend public policy.
24.

In order for there to be a deceptive trade practice, there must be a representation,

omission or practice that is likely to mislead the consumer (actual deception not required).
Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006). The representation, omission or
practice must be material enough to affect the consumers conduct or decision, even though no
actual reliance is required. Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006).It is
presumptively material when the claims relate to health, safety or cost.

See FTC Policy

Statement on Deception, as appended appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174
(1984).
25.

Given the potential for confusion, and to avoid creating a misleading impression, the FTC

recommended that if a collect knows or should know that it is collecting on a time-barred debt, it
must inform the consumer that (1) the collector cannot sue the debt, and (2) providing partial
payment would revive the collector's ability to sue to collect the remaining balance. FED.

TRADE COMM'N, THE STRUCTUR AND PRACICE OF THE DEBT BUYING INSUSTRY
47 (2013) (FTTC Report 2013). The FTC subsequently secured a consent decree with Asset
Acceptance, LLC. See United States v. Asset Acceptance, LLC, No. 8:12-cv-182-T-27EAJ
(M.D. Fla. 2012). That decree requires the company to disclose to consumers whether it knows
or believes that a debt was incurred out-side the limitations period, using this language: "The
law limits how long you can be sued on a debt. Because of the age of your debt we will not sue
you for it."
26.

Federal courts have not held that a consumer may only assert his rights defensively in

response to a claim initiated by an assignee for balance due on the contract. All conduct
specifically prohibited or disclosures specifically required by the FDCPA is material. Mark v.
J. C. Christensen & Assoc., Inc., 09-100, 2009 U.S. Dist. LEXIS 67724, *11 (D.Minn. Aug. 4,
2009); Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 374 (4th Cir. 2012) (violations of
1692e(11) are always material); Garo v. Global Credit & Collection 84 Corp., CV-09-2506PHX-GMS, 2011 U.S. Dist. LEXIS 7737 (D.Ariz. January 26, 2011). This would be in clear
contravention of the FTC's intention. 536 NE2d at 590, n. 5. Accord, Thomas v. Ford Motor
Credit Company, supra, 429 A.2d at 282, and Vasquez v. Superior Court of San Joaquin County,
484 P.2d 964, 979-980, 94 Cal. Rptr. 796, 823-824 (1971). The Plaintiff proposes that the same
holds true for the FCCPA.
In abrogating the holder in due course rule in consumer credit transactions, the FTC
preserved the consumer's claims and defenses against the creditor-assignee. The FTC rule
was therefore designed to reallocate the cost of seller misconduct to the creditor. The
commission felt the creditor was in a better position to absorb the loss or recover the cost
from the guilty party -- the seller.
27.

It is this public policy which Plaintiffs now move this Court to enforce. See Compl.

34-38 & 43-44, FTC v. Fairbanks Capital Corp., 03-12219 (D. Mass. Nov. 12, 2003) (alleging
that the charging of late fees and other associated charges was unfair practice under Section 5 of
the FTC Act and a violation of 807 and 808 of the FDCPA), available at
http://www.ftc.gov/os/2003/11/0323014comp.pdf.
28.

Section 5 of the FTCA makes unfair or deceptive acts or practices in or affecting

commerce unlawful. 15 U.S.C. 45(a)(1). To establish liability under section 5of the FTCA,
the FTC must establish that (1) there was a representation; (2) the representation was likely to
mislead customers acting reasonably under the circumstances, and (3) the representation was

material. FTC v. Tashman, 318F.3d 1273, 1277 (11th Cir. 2003).

Defendant properly states

that:
Plaintiff claims DIRECTV violated the FCCPA by attempting to collect a debt that was
illegitimate because it was time-barred. 3 Under Fla. Stat. 599.72(9), [n]o person shall
. . . [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt
is not legitimate. Therefore, to sustain his claim, plaintiff must allege facts showing
DIRECTV was claiming a legal right that did not exist and that [DIRECTV] had actual
knowledge that the right did not exist.
29.

To the extent that DIRECTV is not a debt collector, they are still actionable under the

FCCPA. DIRECTV knew that the debt was time-barred when they sold it and attempted to
collect it, in part by either hiring ANFI or selling the debt to ANFI at 5-10 cents on the dollar and
gave Plaintiffs private location information to ANFI.

Assignment of a debt is still debt

collection and under the purview of the FCCPA. Plaintiff has been offered no proof that
DIRECTV extended credit or that ANFI is owed any money.

The Defendants are required to

provide proper documentation of their claim. The Defendant has superior knowledge of all these
facts and there can be no question that they were at all times aware of these facts when they
assigned or sold the account.
30.

Defendant then states:

Finally, plaintiff also fails to allege actionable damages under FDUPTA. Here, plaintiff
requests actual damages for frustration and stress . . . . (Id. at Pg. 12). FDUTPA
explicitly states that it does not apply to a claim for personal injury or death or a claim
for damage to property other than the property that is the subject of the consumer
transaction. T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); see
Taviere v. Precision Motor Cars, Inc., 2010 WL 557347, at * 5 (FDUPTA claim
dismissed because plaintiff alleged damages relating to stress, anxiety and depression
while FDUTPA bars claims for personal injuries.). Plaintiffs failures to allege a
deceptive act or actionable damages are fatal to his claim.

31.

This count fails because the Defendant again wants the court to assume that the Plaintiff

can offer no set of facts as to his factual allegations 1-53. This is simply false. Floridas
Deceptive and Unfair Trade Practices Act (FDUTPA) (F.S. 501.201 et seq.) was enacted to give
consumers stronger legal protection against commercial wrongdoing. It is patterned after the
Federal Trade Commission Act (FTC act) (15 U.S.C. 45 et seq.), which provides a right of
action only to the FTC. See Holloway v. Bristol-Myers Corp., 485 F.2d 986 (D.C. Cir. 1973);
Baum v. Great Western Cities, Inc., 703 F.2d 1197, 1209 (10th Cir. 1983). Like its federal

counterpart, Floridas little FTC act prohibited unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce. FDUTPA further provided
that in construing those provisions, due consideration and great weight shall be given to the
interpretations of the FTC and the federal courts relating to the FTC act. Fla. Stat. 501.204(2);
Rollins, Inc. v. Heller, 454 So. 2d 580, 584 (Fla. 3d D.C.A. 1984), rev. den., 461 So. 2d 414 (Fla.
1985).
32.

The purpose of the FDUTPA is [t]o protect the consuming public and legitimate

business enterprises from those who engage in unfair methods of competition, or

unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce."
501.202(2), Fla. Stat. (2005); see also Citibank (S.D.) N.A. v. Nat'l Arbitration Council, Inc.,
2006 WL 2691528 (M.D. Fla. Sept. 19, 2006). FDUTPA makes unlawful unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the
conduct of trade or commerce. 501.204, Fla. Stat. (2005); see also Citibank. Instead of
defining specific elements for an action under the statute, it directs the courts of Florida to give
due consideration and great weight . . . to the interpretations of the Federal Trade Commission
Act, 15 U.S.C., section 45(a)(1). 501.204(2), Fla. Stat. (2005); see also Romano v. Motorola,
Inc., 2007 WL 4199781 (S.D. Fla. Nov. 26, 2007); Davis v. Powertel, Inc., 776 So. 2d 971, 974
(Fla. 1st DCA 2000), review denied 794 So. 2d 605 (Fla. 2001).
33.

The Florida Deceptive and Unfair Trade Practice act has been referred to as the mini

FTC act. Accepting the weight of authorities from the actions of the Florida Deceptive and
Unfair Trade Practices Act (FDUTP). FTC has prosecuted many a debt collector for violation
of the FTC act including many debt collectors including, but not limited to MIDLAND,
ENFORCEMENT, etc. etc.

Seems that the Federal Trade Commission believes that debt

collectors are engaged in trade. This argument fails miserably. To the extent that there the issue
of whether DIRECTV, which offers entertainment. Even assuming arguendo the facts as pled
establish that MERS engaged in deceptive acts or unfair trade practices, MERS' actions do not
qualify as "trade or commerce" under the Act. Under FDUTPA, "trade or commerce" means:
[A]dvertising, soliciting, providing, offering, or distributing, whether by sale, rental, or
otherwise, of any good or service, or any property, whether tangible or intangible, or any
other article, commodity, or thing of value, wherever situated. `Trade or commerce' shall
include the conduct of any trade or commerce, however denominated, including any
nonprofit or not-for-profit person or activity.

Fla. Stat. 501.203(8).

Defendant DIRECTV and MICHAEL D. WHITE engage in trade and commerce.
See DIRECT-TC http://www.directv.com/ which states:
There's only one company that delivers an amazing entertainment experience
across your TV, computer, tablet, or phone with industry-leading customer
serviceand it's spelled DIRECTV. Be careful of any company that advertises
the DIRECTV name with a misspelling of any sort, whether it's DIRECT TV with
a space in between or DIRECTTV with two T's.
According to the FTC, DIRECTV is actionable and does engage in trade. DIRECTV is no
stranger to enforcement actions against them and unlawful debt collection activity.
http://www.consumerreports.org/cro/news/2015/03/ftc-directv-deceptive-advertising/index.htm.

FTC Charges DIRECTV with Deceptively Advertising the Cost of Its Satellite
Television Service
March 11, 2015
Note: A conference call-in for media with FTCs Bureau of Consumer Protection
Director Jessica Rich will occur as follows:
The Federal Trade Commission has charged DIRECTV, the countrys largest
provider of satellite television services, with deceptively advertising a discounted 12month programming package because it fails to clearly disclose that the package requires
a two-year contract. .
.DIRECTV does not clearly disclose that the cost of the package will increase by up
to $45 more per month in the second year, and that early cancellation fees of up to $480
apply if consumers cancel the package before the end of the two-year period.
DIRECTV also fails to disclose that its offer of free premium channels for three months
is in fact a negative option continuity plan that requires consumers to proactively cancel
to avoid automatic charges on their credit or debit cards, the FTC alleges. DIRECTV
misled consumers about the cost of its satellite television services and cancellation fees,
said FTC Chairwoman Edith Ramirez.
the FTC is seeking a court order that permanently bars DIRECTV from engaging in
the allegedly illegal conduct, as well as a monetary judgment that could be used to
provide refunds to affected consumers

The Commission vote approving the complaint was 5-0. It was filed in the U.S.
District Court for the Northern District of California, San Francisco Division on March
11, 2015, and names as defendants DIRECTV and DIRECTV, LLC.
34.

Proof of prior illegal acts is admissible to show knowledge and intent. Joseph Taylor

Coal Co. v. Dawes, 122 Ill.App. 389 (1905), aff'd. 220 Ill. 147, 77 N.E. 131 (1906); Edgar v.
Fred Jones Lincoln-Mercury, 524 F.2d 162, 167 (10th Cir. 1975; Eaves v. Penn, 587 F.2d 453,
463-4 (10th Cir. 1978) (in civil action for breach of fiduciary duty, evidence of breaches of
fiduciary other than one for which recovery was sought properly admitted to show intent);
Welch v. Barnett, 34 Okla. 166 125 P. 472 (1912) (that five Indians willed property to the same
unrelated whitemen in different transactions is convincing proof that undue influence and fraud
were practiced on all); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 494 A.2d 804, 814 (1985).
35.

The FTCs rule on preservation of consumers claims and defenses (16 CFR 433; the

holder rule) makes it an unfair practice to take or receive a consumer credit contract not
containing a specified notice that any holder is subject to the claims and defenses which the
debtor could assert against the seller of the goods or services. The holder rule was designed to
abrogate the use of the holder-in-due-course doctrine in consumer credit transactions. (Similarly,
the 1993 amendments to FDUTPA removed its exemption for a holder in due course of a
negotiable instrument or the transferee of a credit agreement received in good faith without
knowledge of a violation of FDUTPA). Fla. Stat. 501.212; Senate Staff Analysis, supra note
12, at 3. See Dept of Legal Affairs v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253,
1259 (Fla. 1st DCA 2007) (holding that OAGs complaint challenging contract terms as
unconscionable stated cause of action under FDUTPA without identifying the terms or why they
were unconscionable).
CONCLUSION
For the aforementioned reasons, Defendants motion should be denied.

Dated: June 23, 2015.

Respectfully submitted,
_______________________

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original was filed with the Court and a copy of the
foregoing was furnished by United States Mail, postage prepaid and properly addressed this June
22, 2015 to all included in the service list below.
SERVICE LIST

Respectfully,

_______________________
ROBERT GONXALEZ
12500 SW 204 STREET
MIAMI, FLORIDA